SPEECH 

OF 

WILLIAM  H.  SEWARD, 

ON 

FRENCH  SPOLIATIONS. 


SPEECH 


WILLIAM  H.  SEWAKD, 


THE  CLAIMS  OF  AMERICAN  MERCHANTS  FOR  INDEMNITIES 


FRENCH  SPOLIATIONS. 


[Delivered  in  the  Senate  of  the  United  States,  January  21,  1851.] 


WASHINGTON  : 

PRINTED  BY  BUELL  &  BLANCHARD. 
1851. 


'  I  I 


SPEECH. 


MR.  PRESIDENT  :  While  no  lawful  public  engagement  ought  ever  to  be 
broken,  debts  founded  on  the  appropriation  of  private  property  to  the  gen- 
eral use,  and  especially  to  the  discharge  of  obligations  incurred  in  the  war 
of  the  Revolution,  are  practically  guarantied  by  the  Constitution,  and  are 
stamped  with  a  peculiar  equity.  They  ought,  therefore,  to  be  held  as  sa- 
cred as  the  safety  of  the  State  itself.  The  claims  before  us  fall  within  that 
class  of  inviolable  obligations. 

The  peace  of  Paris,  in  1763,  reduced  the  broad  possessions  of  France- 
in  America  to  Cayenne  on  the  continent,  and  the  islands  of  St.  Domingor 
Martinique,  Guadaloupe,  St.  Lucia,  St.  Vincent,  Tobago,  Deseada,  Mari- 
galante,  St.  Pierre,  Miquelon,  Grenada,  and  Dominica,  in  the  Atlantic 
ocean.  Great  Britain,  at  the  same  time,  acquired  the  Canadas,  together 
with  the  vast  region  of  New  France,  and  thus  secured  to  herself  an  empire 
extending  from  the  Gulf  of  Mexico  to  the  Arctic  circle. 

In  February,  1778,  the  new  thirteen  American  States  were  struggling  to 
disengage  themselves  from  that  empire.  It  was  a  conflict  ripened  and  final 
between  Great  Britian  to  retain  supreme  dominion,  and  the  United  States 
to  acquire  absolute  sovereignty  and  independence.  Great  Britian,  so  lately 
victorious  over  her  great  continental  rival,  was  now  confessed  mistress  of 
the  seas.  The  United  States  had,  then,  a  free  population  scarcely  surpass- 
ing their  present  number  of  slaves.  Their  sovereignty  had  been  assumed 
only  nineteen  months  before,  and  had  not  yet  been  recognised  by  any 
foreign  nation,  nor  even  by  the  least  of  the  hundred  savage  tribes  whom 
the  wilderness  protected  within  and  around  their  borders.  They  had  no 
navy,  mercantile  marine,  fortifications,  constitution,  nor  even  confirmed 
confederation.  The  hopes  which  had  been  kindled  by  early  successes 
were  almost  extinguished  by  recent  and  successive  disasters.  Boston  had, 
indeed,  been  regained,  and  Burgoyne  had  given  back  the  passes  of  the 
North  :  but  the  enemy  yet  retained  New  York,  and  now  victorious  over 
Washington  in  successive  pitched  battles,  on  fields  chosen  by  himself,  on 
the  Brandywine  and  at  Germantown,  was  marching  unobstructed  towards 
Philadelphia,  then  the  American  capital.  The  precious  metals  seemed  to 


have  hidden  themselves  again  in  the  earth,  and  paper  credits  had  every- 
where collapsed.  The  chaplain  of  Congress  implored  Washington  "to 
give  over  the  ungodly  war  in  which  he  was  engaged."  The  discomfited 
army,  without  recruits,  pay,  or  sufficient  food,  had  tracked  their  way  with 
bleeding  feet  into  winter  quarters  on  the  Schuylkill.  Two  hundred  officers 
had  resigned  and  retired;  the  hospitals  and  the  neighboring  farmers'  fire- 
sides were  crowded  by  soldiers  without  blankets  or  shoes ;  and  the  great 
leader,  in  the  midst  of  discontents  fast  growing  into  mutiny,  announced  to 
the  loosely  constituted  Legislature,  which  was  now  convulsed  with  dis- 
trust and  faction,  that  "  unless  some  great  and  capital  change  should  occur, 
the  troops  under  his  care  must  starve,  dissolve,  or  disperse." 

A  great  and  capital  change  did  occur.  Allied  armies,  fresh,  vigorous, 
and  well  appointed,  co-operating  with  a  gallant  fleet,  met  the  invader,  and 
his  surrender  at  Yorktown  opened  the  way  to  peace,  sovereignty,  and  inde- 
pendence. An  auspicious  star  had  led  Franklin,  Deane,  and  Lee,  the  first 
of  American  ambassadors,  to  Paris ;  and  it  was  an  alliance  with  France,  a 
hereditary  foe,  but  thenceforth  a  fraternal  nation,  that  wrought  ©ut  this 
.great  and  capital  change,  and  effected  that  triumphant  consummation. 

The  courses  of  the  allies  immediately  separated,  and  thenceforward 
widely  diverged.  The  United  States  completed  their  union  in  peace  and 
tranquillity,  and  established  their  Constitution  on  the  unremovable  founda- 
tions on  which  loyal  citizens  hope,  and  wise  men  throughout  the  world 
believe,  that  it  stands  firmly  fixed  forever  ;  while,  by  well-directed  devotion 
of  the  national  revenues  to  the  payment  of  their  debts  and  the  establish- 
ment of  their  credit,  and  a  wise  cultivation  of  arts  and  industry,  they  pre- 
pared the  way  for  permanent  and  extended  empire. 

France,  on  the  contrary,  began  the  descent  towards  revolution  in  the 
very  year  when  the  United  States  emerged  from  its  dangerous  labyrinths; 
and  thereafter,  distracted  herself,  for  thirteen  years  she  convulsed  all 
Europe. 

It  was  during  this  period  that  these  claims  for  indemnities  for  spoliations 
arose. 

The  political  and  commercial  relations  between  France  and  the  United 
States  had  been  defined  by  treaties. 

First.  The  Treaty  of  Jlmity  and  Commerce,  the  most  ancient  treaty  of  the 
United  States,  executed  on  the  6th  of  February,  1778.  It  stipulated  [Art. 
1]  a  firm,  inviolable,  universal,  and  perpetual  peace.  [Art.  2.]  That  all 
commercial  privileges  to  be  granted  by  either  party  to  any  State  should  be- 
come common  to  the  other  contracting  party.  [Arts.  3  and  4.]  The  most 
favored  footing  for  each  party  in  the  other's  ports.  [Arts.  5  and  6.]  Re- 
ciprocal protection  to  vessels  in  their  respective  jurisdictions.  [Art.  8.] 
The  aid  of  France  in  negotiations  by  the  United  States  with  the  Barbary 


Powers.  [Art.  12.]  The  mutual  exhibition  of  passports  and  certificates  of 
cargo  in  cases  of  suspicious  vessels  making  the  ports  of  an  enemy  of  one 
of  the  parties.  [Art.  14.]  That  goods  of  either  party  should  be  forfeited  if 
laden  in  ships  of  an  enemy  of  the  other.  [Art.  17.]  That  armed  vessels  of 
one  party  might  freely  carry  prizes  into  the  other's  ports,  without  paying 
duties  to  courts,  and  might  freely  depart  to  the  places  designated  in  their 
commissions,  and  that  neither  party  should  give  shelter  to  captors  of  prizes 
from  the  other.  [Art.  22.]  That  privateers  of  an  enemy  of  one  party 
should  not  be  allowed  to  be  fitted  out  or  to  sell  prizes  in  the  ports  of  the 
other.  [Art.  23.]  That  free  ships  should  make  free  goods.  [Art.  24.] 
Defined  articles  contraband  of  war,  and  excepted  from  that  class  many 
articles  not  free  by  the  law  of  nations.  [Art.  25.]  In  case  one  party  should 
be  at  war,  the  vessels  of  the  other  should  be  furnished  with  sea  letters,  or 
passports,  and  with  certificates  containing  the  particulars  of  the  cargo,  so  as 
to  relieve  the  rigors  of  search. 

Secondly.  The  Treaty  of  Alliance,  concluded  on  the  same  day,  February 
6,  1778.  In  this  treaty,  the  parties  recited  the  execution  of  the  Treaty 
of  Amity  and  Commerce,  declared  that  they  had  considered  the  means 
of  strengthening  their  engagements,  particularly  in  case  Great  Britain, 
in  resentment  against  those  engagements,  should  break  the  peace  with 
France,  either  by  direct  hostilities  or  by  hindering  her  commerce  and 
navigation,  contrary  to  the  rights  of  nations  and  the  peace  subsisting 
between  those  countries ;  and  that  therefore  they  had  agreed,  that 
[Art.  1]  if  war  should  break  out  between  France  and  Great  Britain, 
during  the  continuance  of  the  existing  war  between  the  United  States 
and  England,  that  then  his  Majesty  and  the  United  States  would  make 
it  a  common  cause,  and  aid  each  other  mutually  with  their  good  offices, 
their  counsel,  and  their  forces,  as  was  becoming  to  good  and  faithful 
allies.  [Art.  2.]  That  the  essential  and  direct  end  of  their  defensive 
alliance  was  to  maintain  effectually  the  Liberty,  Sovereignty,  and  In- 
dependence, absolute  and  unlimited,  of  the  United  States  of  America,  as 
well  in  matters  of  government  as  of  commerce.  [Arts.  3  and  4.]  That 
each  party  should  make  every  effort  to  attain  that  end ;  and  that  they 
should,  in  every  possible  way,  act  in  concert,  and  with  promptness  and 
good  faith.  [Arts.  5,  6,  and  7.]  That  France  renounced,  in  favor  of  the 
United  States,  conquests  that  might  be  made  by  the  allied  armies,  except 
the  British  Islands  in  or  near  the  Gulf  of  Mexico.  [Arts.  8  a»d  9.]  That 
neither  party  should  conclude  a  truce  or  peace  without  the  other's  con- 
sent ;  and  that  neither  party  should  demand  any  compensation  from  the 
other.  [Art.  11.]  The  two  parties  guarantied  mutually,  from  the  date  of 
the  treaty  forever  against  all  other  Powers,  to  wit — the  United  States  to  his 
Most  Christian  Majesty  the  then  existing  possessions  of  the  Crown  of 


France  in  America,  as  well  as  those  it  might  acquire  by  the  treaty  of  peace. 
And  his  Most  Christian  Majesty,  on  his  part,  guarantied  to  the  United 
States  their  Liberty,  Sovereignty,  and  Independence,  absolute  and  unlim- 
ited, and  also  their  possessions,  and  the  additions  or  conquests  that  the 
Confederation  might  obtain  during  the  war,  conformably  to  the  5th  and  6th 
articles.  [Art.  12.]  In  order  to  fix  more  precisely  the  application  of  the 
preceding  article,  the  contracting  parties  declared  that,  in  case  of  a  rup- 
ture between  France  and  England,  the  reciprocal  guaranty  declared  in  that 
article  should  have  its  full  force  and  effect  the  moment  such  rupture  should 
breakout;  and  if  such  rupture  should  not  take  place,  the  mutual  obliga- 
tions of  the  said  guaranty  should  not  commence  until  the  moment  of  the 
cessation  of  the  war  then  existing  between  the  United  States  and  England 
should  have  ascertained  their  possessions. 

Thirdly.  The  Treaty  called  the  Consular  Convention,  concluded  on  the 
14th  of  November,  1788,  containing  the  following  articles  : 

"  ART.  8.  The  Consuls  or  Vice  Consuls  shall  exercise  police  over  all  the  vessels 
of  their  respective  nations  ;  and  shall  have,  on  board  the  said  vessels,  all  power  and 
jurisdiction  in  civil  matters,  in  all  the  disputes  which  may  there  arise.  They  shall 
have  an  entire  inspection  over  the  said  vessels,  their  crews,  and  the  changes  and 
substitutions  therein  to  be  made ;  for  which  purpose  they  may  go  on  board  the  said 
vessels  whenever  they  may  judge  it  necessary." 

"  ART.  12.  All  differences  and  suits  between  the  subjects  of  the  Most  Christian 
King  in  the  United  States,  or  between  the  citizens  of  the  United  States  within  the 
dominions  of  the  Most  Christian  King,  and  particularly  all  disputes  relative  to  the 
wages  and  terms  of  engagement  of  the  crews  of  their  respective  vessels,  and  all  the 
differences,  of  whatever  nature  they  be,  which  may  arise  between  the  privates  of 
the  said  crews,  or  between  captains  of  different  vessels  of  their  nations,  shall  be 
determined  by  their  respective  Consuls.  The  officers  of  the  country,  civil  or  mili- 
tary, shall  not  interfere  therein,  or  take  any  part  whatever  in  the  matter;  and  the 
appeals  from  the  said  consular  tribunals  shall  be  carried  before  the  tribunals  of 
France  or  of  the  United  States." 

The  French  Revolution  began  in  1789,  and  in  1793  it  became  a  general 
European  war,  in  which  France,  while  treading  continually  upon  the  fierc- 
est internal  fires,  bared  her  head  to  all  the  thunderbolts  of  Despotism. 

Washington,  by  the  serene  tranquillity  and  majestic  justice  of  his  char- 
acter, repressed  the  sympathies  of  the  United  States  for  France  and  the 
Republican  cause,  and  sent  forth  his  memorable  proclamation  :  "  Whereas," 
said  the  President,  "  it  appears  that  a  state  of  war  exists  between  Austria, 
Prussia,  Sardinia,  Great  Britain,  and  the  United  Netherlands,  of  the  one 
part,  and  France,  on  the  other,  and  the  duty  and  interest  of  the  United 
States  require  that  they  should,  with  sincerity  and  good  faith,  adopt  and 
pursue  a  conduct  friendly  and  impartial  towards  the  belligerent  Powers, 


I  have  therefore  thought  fit,  by  these  presents,  to  declare  the  disposition  of 
the  United  States  to  observe  the  conduct  aforesaid." 

No  less  a  character  than  Washington  could  have  assumed  neutrality  in 
such  a  crisis.  Nor  could  even  he  protect  it  in  that  fierce  conflict  of  armed 
opinion  which  raged  throughout  Europe,  as  if  all  its  separate  and  widely 
different  States  had  been  one  entire  yet  distracted  commonwealth.  The 
cost  of  supplies  rose  two,  three,  and  four  fold,  under  the  demands  of  the 
belligerent  nations.  The  United  States  put  in  motion,  for  once,  and  all  at 
once,  the  three  wheels  of  industry,  Production,  Manufacture,  and  Ex- 
change, and  wealth  flowed  in  upon  them  like  a  spring  tide.  The  com- 
batants, relapsing  into  the  morality  of  the  Barbary  Powers,  seized  and  con- 
fiscated neutral  ships  and  their  cargoes.  American  commerce  was  thus 
suddenly  checked,  and  the  revenues  it  yielded  rapidly  declined.  Jefferson, 
then  Secretary  of  State,  met  the  enemy  with  a  declaration — 

"  I  have  it  in  charge  from  the  President  to  assure  the  merchants  of  the  United 
States  concerned  in  foreign  commerce  or  navigation,  that  attention  will  be  paid  to 
any  injuries  they  may  suffer  on  the  high  seas  or  in  foreign  countries,,  contrary  to 
the  law  of  nations  or  to  existing  treaties  j  and  that,  on  their  forwarding  hither  well- 
authenticated  evidences  of  the  same,  proper  proceedings  will  be  adopted  for  their 
relief." 

The  American  merchants,  thus  stimulated,  prosecuted  more  diligently 
than  before  a  trade  which  yielded  enticing  profits,  while  its  risks  seemed 
to  have  been  underwritten  by  their  country.  The  maritime  injuries  suffered 
by  Americans  at  the  hands  of  France  in  the  course  of  the  war  were  at  the 
time  classified  as  follows  : 

First.  Spoliations  and  mal-treatment  of  the  vessels  of  American  citizens 
at  sea,  by  French  ships  of  war  and  privateers. 

Second.  A  long  and  distressing  embargo,  which  detained  many  Amer- 
ican vessels  at  Bordeaux  in  1793  and  1794. 

Third.  The  dishonor  of  bills  and  other  evidences  of  debt  due  to  Ameri- 
can citizens  for  supplies  furnished,  at  the  request  of  France,  to  herself  and 
to  her  West  India  Islands,  in  a  period  of  famine  and  civil  war. 

Fourth.  The  seizure  or  forced  sales  of  the  cargoes  of  American  vessels, 
and  the  appropriation  of  them  to  public  uses. 

Fifth.  The  non-performance  of  contracts  for  supplies,  made  by  the 
French  authorities  with  American  citizens. 

Sixth.  The  condemnation  of  American  vessels  and  cargoes  under  ma- 
rine ordinances  of  France  incompatible  with  treaties. 

Seventh.  Captures,  in  violation  of  the  provisions  of  the  commercial 
treaty,  of  American  vessels  laden  with  provisions,  bound  to  the  ports  of 
the  enemy. 


8 

To  elucidate  the  nature  of  these  injuries : 

On  the  9th  of  May,  1793,  France  authorized  armed  vessels  and  privateers 
to  arrest  and  bring  into  her  ports  neutral  ships,  laden  wholly  or  in  part 
either  with  provisions  belonging  to  neutral  nations  and  destined  to  an  en- 
emy's ports,  or  with  merchandise  belonging  to  an  enemy,  and  declared 
that  such  merchandise  should  be  lawful  prize,  while  such  provisions  should 
be  paid  for  according  to  their  value  at  the  place  of  destination,  and  just 
indemnification  should  be  made  for  the  freights  and  the  detention  of  the 
ships.  This  decree  was  alternately  rescinded  as  to  the  United  States,  re- 
stored, rescinded  again,  and  finally  restored  and  left  in  full  effect. 

American  vessels  known  and  confessed,  but  found  without  passport  or 
certificate,  in  the  exact  form  prescribed  by  the  22d  article  of  the  Treaty  of 
Amity  and  Commerce,  were,  by  a  decree  of  the  3d  of  March,  1797,  de- 
clared lawful  prizes. 

On  the  2d  of  July,  1796,  France  decreed  that  she  would  treat  neutral 
vessels,  either  as  to  confiscations,  searches,  or  captures,  in  the  same  man- 
ner that  they  suffered  the  English  to  treat  them — a  decree  that  punished 
with  violence  the  endurance  of  aggression  committed  by  another,  while  it 
confided  in  the  discretion  of  the  second  corsair  to  determine  who,  by  be- 
coming victims  of  the  first,  had  offended  against  so  extraordinary  a  code.* 

*  On  the  2d  March,  1797,  the  French  Government  issued  a  decree  of  peculiar  se- 
verity, founded  on  the  alleged  violation  of  our  treaty  with  her,  in  the  stipulations  of 
Mr.  Jay's  treaty  with  England  of  November  19,  1794.  It  was  designed  to  sweep 
the  ocean  of  American  vessels,  as  it  did,  by  requiring  American  vessels  found  with- 
out a  role  d'equipage,  a  document  it  was  well  known  none  of  our  vessels  carried,  to 
be  seized  and  condemned — and  a  very  large  portion  of  our  vessels  that  she  captured 
and  condemned  were  for  want  of  such  a  role. — Page  160,  No.  88. 

With  regard  to  this  class  of  claims,  Messrs.  Pihckney,  Marshall,  and  Gerry,  thus 
wrote  to  the  Secretary  of  State,  dated  Paris,  October  22,  1797  : 

"  We  observed  to  him  that  none  of  our  vessels  had  what  the  French  termed  a 
role  d'equipage ;  and  that  if  we  were  to  surrender  all  the  property  which  had  been 
taken  from  our  citizens,  in  cases  where  their  vessels  were  not  furnished  with  such 
a  role,  the  Government  [of  the  United  States]  would  be  responsible  to  its  citizens 
for  the  property  so  surrendered ;  since  it  would  be  impossible  to  undertake  to  assert 
that  there  was  any  plausibility  in  the  allegation  that  our  treaty  required  a  role 
d'equipage."— Page  467,  JYb.  310. 

And  again,  from  the  same  to  the  same,  December  24, 1797,  being  an  extract  from 
General  Marshall's  Journal : 

"  I  would  positively  oppose  any  admission  of  the  claim  of  any  French  citizen,  if 
not  accompanied  with  the  admission  of  the  claims  of  the  American  citizens  of 
property  captured  and  condemned  for  want  of  a  role  d'equipage.  My  reason  for 
conceiving  that  this  ought  to  be  stipulated  expressly  was  a  conviction  that,  if  ii  was 
referred  to  commissioners,  it  would  be  committing  absolutely  to  chance,  as  com- 
plete a  right  as  any  individual  ever  possessed." — Page  471,  JVb.  316. 

On  the  25th  October,  1797,  the  Executive  Directory  passed  a  decree  directing 


On  the  29th  of  October,  1799,  France  decreed  that  any  native  of  an 
allied  or  even  of  a  neutral  country,  found  wearing  a  hostile  commission, 
or  serving  in  an  enemy's  crew,  should  suffer  as  a  pirate,  without  being 
allowed  to  allege  duress,  by  violence,  menace,  or  otherwise. 

Besides  one  hundred  and  three  vessels  which  were  detained  by  the  em- 
bargo at  Bordeaux,  there  is  a  list  of  six  hundred  and  nineteen  which  were 
captured  and  plundered  before  1800.  The  true  number  of  spoliations  is 
said  to  have  been  three  times  greater.  Contemporaneous  expositions  by 
the  authorities  of  the  United  States  placed  the  aggregate  of  damages  sus- 
tained by  the  merchants  at  more  than  twenty  millions  of  dollars.  Of  these 
damages,  portions  amounting  to  about  ten  millions  of  dollars  were  adjusted 
and  paid  chiefly  under  the  convention  of  1800,  finally  carried  into  effect  by 
the  Louisiana  treaty  in  1803.  The  exact  amount  of  damages  due,  however, 
is  not  now  in  question.  The  bill  before  the  Senate  confines  itself  to  un- 
adjusted claims  to  be  actually  proved,  and  awards  only  five  millions,  with- 
out interest,  in  satisfaction  of  all  that  shall  be  established. 

The  United  States  diligently  prosecuted  the  claims  from  1793  to  1800, 
but  France  did  not  so  long  remain  a  mere  respondent. 

Edmund  C.  Genet,  her  minister,  claimed,  and  actually  assumed  to  fit 
out  privateers  in  American  ports,  to  cruise  against  British  vessels.  Under 
the  22d  article  of  the  Treaty  of  Amity  and  Commerce,  he  demanded  what, 
in  fact,  were  admiralty  powers,  for  French  consuls  in  American  ports,  by 
virtue  of  article  8th  of  the  Consular  Convention  ;  while,  under  color  of  the 
17th  article  of  the  Treaty  of  Amity  and  Commerce,  he  insisted  that  French 
vessels  had  a  right  to  sell  their  prizes  free  from  all  duties  in  American 
ports  ;  and,  finally,  he  complained  that  British  ships  were  permitted  to 
take  French  goods  out  of  American  vessels,  while  a  reciprocal  right  was 
denied  to  the  French  marine.  All  these  complaints,  however,  were  dis- 
allowed, upon  grounds  which  will  not  now  be  questioned. 

Nor  were  the  relations  between  the  United  States  and  Great  Britain  less 
disturbed.  Besides  having  offended  earlier  and  more  flagrantly  than  France 
against  our  neutrality,  Great  Britain  still,  in  violation  of  the  Treaty  of  In- 
dependence, held  the  military  posts  on  our  Western  frontiers,  and,  through 
them,  the  control  of  the  disaffected  Indian  tribes  ;  nor  did  she  seem  un- 
willing, amidst  our  domestic  distractions,  to  provoke  a  new  trial  of  our 
ability  to  maintain  the  independence  she  had  so  reluctantly  confessed. 
While  John  Jay  opened  negotiations  with  Great  Britain,  at  London,  James 

that  the  sloops  of  war  and  other  light  vessels  belonging  to  the  Republic  shall  be 
chartered,  to  cruise,  to  private  adventurers  —  the  equipment  and  outfit  to  be  at  the 
expense  of  the  Government,  and  one-third  of  the  proceeds  to  result  to  the  Govern- 
ment. 


10 

Monroe,  at  Paris,  assured  the  French  Directory  that  Mr.  Jay's  object  was 
to  obtain  compensation  for  spoliations,  with  an  immediate  restitution  of 
the  Western  posts ;  and  that  he  was  positively  forbidden  from  weakening 
the  engagements  existing  between  the  United  States  and  France.  These 
assurances  were  effectual.  Early  in  1795  the  French  Directory  decreed 
that  the  Treaty  of  Amity  and  Commerce  should  thenceforth  be  strictly 
observed,  and  provided  for  indemnifying  those  who  had  suffered  by  the 
embargo  at  Bordeaux  ;  and  Mr.  Monroe  began  a  dispatch  with  announcing 
that  a  satisfactory  arrangement  of  the  claims  for  spoliations  was  at  hand. 
But  he  closed  the  communication  with  a  statement,  that  the  ground  thus 
happily  gained  had  been  suddenly  lost,  by  reason  of  rumored  stipulations 
injurious  to  France  in  the  British  treaty  just  then  signed  at  London. 

A  cloud  of  political  mystery  gathered  upon  this  compact  from  the  day  of 
its  execution,  the  19th  of  November,  1794,  until  it  was  finally  promulgated 
on  the  9th  of  May,  1796.  France  complained  of  this  concealment  as  dis- 
ingenuous ;  and  she  ever  afterwards  maintained  that  the  United  States  had 
not  merely  violated  their  engagements  with  her,  but  had  even  abandoned, 
also,  their  professed  neutrality,  by  relinquishing  the  principle  that  free  ships 
made  free  goods,  and  by  giving  to  England  a  too  favorable  standard  of  con- 
traband. She  therefore  pursued  her  depredations  more  recklessly  than 
before,  and  with  the  avowed  purpose  of  compelling  the  United  States  to 
break  their  new  engagements  with  Great  Britain,  her  ancient  and  most  in- 
veterate enemy. 

Mr.  Monroe  was  replaced  by  Charles  Cotesworth  Pinckney,  but  France 
now  refused  to  receive  or  recognise  a  Minister.  A  new  and  august  com- 
mission was  instituted,  consisting  of  Mr.  Pinckney,  John  Marshall,  and 
Elbridge  Gerry,  who,  after  enduring  many  insults  and  baffling  many 
intrigues,  returned  to  the  United  States.*  The  United  States,  apprehending 

*  French  proposition,  transmitted  by  Messrs.  Pinckney,  Marshall,  and  Gerry,  to 
the  Secretary  of  State,  dated  Paris,  November  8,  1797  : 

"  2d.  There  shall  be  named  a  Commission  of  five  members,  agreeably  to  a  form 
to  be  established,  for  the  purpose  of  deciding  upon  the  reclamation  of  the  Ameri- 
cans, relative  to  the  prizes  made  on  them  by  the  French  privateers. 

"  3d.  The  American  Envoys  will  engage  that  their  Government  shall  pay  the 
indemnifications,  or  the  amount  of  the  sums  already  decreed  to  the  American  cred- 
itors of  the  French  Republic,  and  which  shall  be  adjudged  to  the  claimants  by  the 
Commissioners.  This  payment  shall  be  made  under  the  name  of  an  advance  to  the 
French  Republic,  who  will  repay  it  in  a  time  and  manner  to  be  agreed  on." — Report 
of  Secretary  of  State,  1825-1826,  Page  467,  J\o.  311. 

Mr.  Gerry  to  the  Secretary  of  State,  October  1,  1798  : 

"  He  [Talleyrand]  said  there  was  a  second  point,  which  respected  the  claims  of 
American  citizens  on  the  French  Republic;  that,  if  the  latter  should  not  be  able  to 
pay  them,  when  adjusted,  and  the  United  States  would  assume  and  pay  them, 
France  would  reimburse  the  amount  thereof.'7 — Page  525,  No.  325. 


11 

war  with  not  only  France,  but  Great  Britain  also,  laid  the  foundations  of 
their  present  systems  of  military  and  naval  defence ;  and  the  controversy 
with  the  former  Power  ripened  into  resistance,  reprisal,  and  retaliation.*  Af- 
ter two  years  had  thus  passed,  and  after  the  French  Directory  had  consented 
to  negotiate,  Oliver  Ellsworth,  William  R.  Davie,  and  William  Vans  Mur- 
ray, proceeded  to  Paris  as  ambassadors.  They  found  France  just  entering 
the  fourth  act  of  the  drama  of  her  Revolution,  the  Consulate  of  the  youthful 
Conqueror  of  Italy.  The  American  ministers  demanded  indemnities  for 
the  spoliations,  as  a  sine  qua  non.  The  French  ministers,  at  whose  head 
was  Joseph  Bonaparte,  readily  yielded  this  condition,  but  insisted  at  the 
same  time  on  a  recognition  and  renewal  of  the  ancient  treaties,  with 
national  damages  for  the  violation  of  them,  as  a  sine  qua  non  on  their  part. 
The  Americans,  in  vain,  resisted  long  and  strenuously  the  demand  of 
the  French  Ministers,  viz  : 

"  That  the  treaties  which  united  France  and  the  United  States  are  not  broken ; 
that  even  war  could  not  have  broken  them  ;  but  that  the  state  of  misunderstanding 
which  has  existed  for  some  time  between  France  and  the  United  States,  by  the  act 
of  some  agents,  rather  than  by  the  will  of  the  respective  Governments,  has  not  been 
a  state  of  war,  at  least  on  the  side  of  France." — Page  616,  JVb.  371. 

But  our  Ministers  were  finally  constrained,  by  principles  of  public  law, 
and  the  inflexible  adherence  to  them  by  the  French  Ministers,  to  yield  the 
point,  and  admit,  that  the  treaties  were  still  in  force — and  then  proposed 
to  purchase  with  large  sums  of  money  a  release  from  their  most  embarrass- 
ing stipulations.  [Page  631,  JVb.  380.] 

They  offered  ten  millions  of  francs  for  a  release  from  the  article  of  guar- 
anty, and  three  millions  of  francs  for  a  reduction  of  the  privileges  granted 
to  France  by  the  17th  article  of  the  Treaty  of  Commerce,  to  such  as  were 
allowed  by  the  United  States  to  the  most  favored  nation.  France  rejected 
all  such  overtures,  and  the  commissioners,  respectively  receding  from  their 
extreme  demands,  concluded  an  accommodation  by  which  the  United 
States  received  compensation  for  the  plunder  of  vessels  not  yet  condemned, 
together  with  payment  of  the  claims  founded  upon  contracts,  and  also  a 
satisfactory  designation  of  articles  contraband  of  war.  The  claims  for 

*  Reprisals,  not  for  the  benefit  of  the  claimants,,  but  to  the  use  of  the  United 
States,  since  the  avails  of  81  French  privateers,  captured  by  our  naval  marine  and 
sold  in  our  ports,  produced  to  our  Treasury  upwards  of  $600,000. 

We  also  captured  French  merchant  vessels,  but  our  courts  ordered  their  restitu- 
tion to  their  owners,  on  the  ground  that  there  was  no  authority  to  capture  them. 

We  also  captured  a  French  national  frigate  and  two  smaller  vessels,  which  we 
restored  in  kind  as  to  the  smaller  vessels,  and  paid  in  money  for  the  frigate,  that  had 
been  lost  at  sea,  under  the  Convention  of  1800. — Naval  Chronicle,  Page  — . 


12 

spoliations  in  cases  where  condemnation  had  already  passed,  the  origi- 
nal sine  qua  non  on  our  part,  together  with  the  reciprocal  claims  of 
France  for  national  indemnities,  and  for  a  recognition  and  renewal  of  the 
ancient  treaties,  the  original  sine  qua  non  on  the  part  of  France,  were 
reserved  by  the  following  article  : 

"  ART.  2.  The  Ministers  Plenipotentiary  of  the  two  parties  not  being  able  to 
agree  at  present  respecting  the  Treaty  of  Alliance  of  the  6th  of  February,  1778,  the 
Treaty  of  Amity  and  Commerce  of  the  same  date,  and  the  Convention  of  the  14th 
of  November,  1788,  nor  upon  the  indemnities  mutually  due  or  claimed,  the  parties 
will  negotiate  further  on  those  subjects  at  a  convenient  time  ;  and  until  they  may 
have  agreed  upon  these  points,  the  said  Treaties  and  Conventions  shall  have  no 
operation,  and  the  relations  of  the  two  countries  shall  be  regulated  as  follows." 

The  United  States  amended  the  new  compact  by  striking  out  this  second 
article  altogether,  and  by  adding  a  new  one  which  limited  its  duration  to 
eight  years. 

Bonaparte,  First  Consul,  accepted  the  amendments,  with  an  explana- 
tion, in  these  words : 

"  Provided,  That  by  this  retrenchment  the  two  States  renounce  their  respective 
pretensions  which  are  the  objects  of  the  said  (second)  article." 

The  United  States  assented,  and  the  compact  was  ratified  as  thus  mutu- 
ally amended. 

This  is  the  Convention  of  1800.  "  The  pretensions  "  which  France 
thus  relinquished  were  claims  for  indemnities  for  violations  of  the  ancient 
treaties  by  the  United  States,  together  with  a  continuance  and  a  renewal 
of  those  treaties;  and  the  "  pretensions"  which  the  United  States  thus  re- 
nounced were  the  claims  for  indemnities  for  spoliations  upon  the  property 
of  American  merchants,  which  are  the  subjects  of  the  bill  now  before  the 
Senate  of  the  United  States. 

Mr.  President,  this  review  discloses — 

First.  That  on  the  6th  day  of  February,  1778,  and  on  the  14th  Novem- 
ber, 1788,  the  United  States  and  France  entered  into  reciprocal  political 
and  commercial  engagements  mutually  beneficial. 

Secondly.  That,  previously  to  the  30th  of  September,  1800,  France  vio- 
lated her  engagements  by  committing  depredations,  in  which  merchants, 
citizens  of  the  United  States,  sustained  damages  to  the  amount  of  twenty 
millions  of  dollars,  of  which,  after  allowing  all  claims  adjusted,  there  still 
remains  the  sum  often  millions  of  dollars,  exclusive  of  interest. 

Thirdly.  That  the  United  States  negotiated  with  France  for  payment  of 
those  damages,  and  also  for  a  release  from  their  ancient  obligations  ;  and 
that  France  conceded  the  claims  for  damages,  but  demanded  national  in- 
demnities for  a  violation  of  the  treaties  by  the  United  States,  and  also  a 
continuance  and  renewal  of  them. 


13 

Fourthly.  That  the  United  States  renounced  their  claims  for  damages 
due  to  their  citizens,  in  consideration  of  a  release  by  France  of  the  trea- 
ties, and  of  her  national  claims  for  damages. 

Fifthly.  That  thus  the  United  States  confiscated  ten  millions  of  private 
property  of  their  citizens,  and  applied  it  to  the  purchase  of  national 
benefits,  under  a  Constitution  which  declares  that  private  property  shall  not 
be  taken  for  public  uses  without  just  compensation  to  its  owners. 

It  seems  to  result  from  these  facts,  that  the  United  States  became  imme- 
diately liable  to  pay  to  the  American  merchants  the  sums  before  due  to 
them  by  France  ;  and  as  this  obligation  was  assumed  by  the  United  States 
in  lieu  of  their  ancient  engagements  with  France,  undertaken  to  secure  the 
establishment  of  the  national  liberty  and  independence,  it  becomes  in 
equity  invested  with  their  sacredness  and  sanctions,  and  therefore  ought  to 
be  regarded  as  a  debt  incurred  for  the  attainment  of  the  sovereignty,  liberty, 
and  independence  of  the  United  States. 

Why,  then,  Mr.  President,  shall  not  this  debt,  so  ancient,  and  apparently 
so  sacred  and  so  just,  be  discharged  ? 

I  proceed  to  review  the  reasons  which  have  been  at  various  times  as- 
signed. 

First.   The  intrinsic  justice  of  the  claims  has  been  questioned. 

The  very  learned  and  justly  distinguished  Senator  from  Missouri,  [Mr. 
BENTON,]  in  a  former  debate,  stated  that  France  had  justified  these  spo- 
liations, on  the  ground  that  the  ships  seized  were  in  part  laden  with  goods 
belonging  to  Englishmen,  who  had  borrowed  the  names  of  Americans.  I 
have  not  been  able  to  find  evidence  to  support  .such  a  pretension.  On  the 
other  hand,  the  diplomatic  language  of  the  United  States  constantly  claim- 
ed that  the  sufferers  were  American  citizens.  Sir,  if  these  claims  are  spu- 
rious, then  it  must  be  true  that  either  Ellsworth,  Marshall,  Pinckney, 
Monroe,  Morris,  Jefferson,  Adams  the  elder,  and  Washington,  were  igno- 
rant of  the  fact,  or  that  they  colluded  to  defraud  France.  Neither  position 
can  be  true.  The  claims  are  therefore  just. 

An  objection  raised  by  the  Senator  from  Virginia  [Mr.  HUNTER]  falls 
under  the  same  head.  It  is  that  the  French  Government  have  a  list  or 
table  of  the  claims  submitted  in  1803,  which  was  presented  by  the  Ameri- 
can Commissioners,  and  which  shows  that  the  French,  as  the  Senator 
says,  suppose  that  they  paid,  under  the  Convention  of  1803,  all  the  claims 
of  American  citizens.  I  have  this  table  before  me.  If  the  honorable  Senator 
will  refer  to  the  treaty  of  1800,  he  will  find  that  it  stipulated  for  the  pay- 
ment of  the  class  specified  in  that  table  only — to  wit :  debts  owing  on  con- 
tracts— and  that  the  claims  for  the  spoliations  now  in  question  were 
omitled  expressly  on  the  ground  that  they  were  excluded  by  the  treaty  of 
1800.  Here  is  the  article  of  that  treaty  : 


14 

"  The  debts  contracted  by  one  of  the  two  nations  with  individuals  of  the  other, 
•or  by  the  individuals  of  one  with  the  individuals  of  the  other,  shall  be  paid,  or  the 
payment  may  be  prosecuted  in  the  same  manner  as  if  there  had  been  no  misunder- 
standing'between  the  two  States.  But  this  clause  sJiall  not  extend  to  indemnities 
claimed  on  account  of  captures  or  confiscations." — Volume  VIII  of  Statutes  at  Large, 
p.  180. 

Then,  what  is  left  out  of  this  table  ?  Exactly  that  portion  of  the  claims 
left  out  of  the  treaty,  and  which  is  the  subject  of  the  present  bill. 

Secondly.  It  has  been  objected  in  late  years  that  the  claims  belonged  to 
speculators.  Certainly  few  of  the  sufferers  survive,  and  soon  all  will  have 
departed.  But  the  claims  are  property ;  they  were  the  property  of  those 
sufferers.  As  property  they  could  be  transferred  and  transmitted  by  assign- 
ment, will,  and  administration.  These  are  only  modes  in  which  property 
is  perpetuated ;  and  this  capability  of  being  perpetuated  is  inherent  in  it, 
and  is  always  rightfully  and  necessarily  recognised  and  protected  by  all 
Governments,  with  proper  limitations.  Individual  property  is  the  ballast  of 
the  State.  Wo  to  the  State  that  casts  it  overboard.  That  State  is  sure  to 
drift  away,  and  to  break  upon  rocks.  But  the  allegation  that  speculators 
have  purchased  these  claims  is  denied,  while  the  bill  protects  the  public  if 
it  be  true.  None  but  a  lawful  assignee  can  take  any  benefit  from  the  bill, 
nor  can  such  an  one  receive  in  any  case  more  than  he  actually  paid  for 
the  claim. 

Thirdly.  It  is  said  that  the  evidences  of  the  claims  and  of  title  must  neces- 
sarily be  loose  and  inconclusive. 

However  this  may  be,  the  fault  does  not  rest  with  the  claimants,  while 
the  losses  resulting  from  deficiency  of  proof  will  fall  upon  them.  More- 
over, they  must  produce  legal  evidence.  The  United  States  can  justly  ask 
no  more. 

Fourthly.  It  is  denied  that  the  United  States  exchanged  a  release  of  the 
claims  for  a  release  of  the  ancient  treaties. 

We  have  seen  that  in  form  at  least  the  treaty  of  1800  was  such  an  ex- 
change of  those  equivalents.  It  was  understood  to  be  such  an  exchange, 
in  effect,  when  made.  Robert  R.  Livingston  said  : 

"  It  will  be  well  recollected  by  the  distinguished  characters  who  had  the  manage- 
ment of  the  negotiation,  that  the  payment  for  illegal  captures,  with  damages  and 
indemnities,  was  demanded  on  the  one  side,  and  the  renewal  of  the  treaties  of  1778 
on  the  other ;  that  they  are  considered  as  of  equivalent  value,  and  that  they  only 
formed  the  subject  of  the  second  article."— Letter  to  Talleyrand,  .April  17,  1802. 

Napoleon,  at  St.  Helena,  declared — 

"  That  the  suppression  of  the  second  article  at  once  put  an  end  to  the  privileges 
which  France  had  possessed  by  the  treaties  of  1778,  and  annulled  the  just  claims 


15 

which  America  might  have  had  for  injuries  done  in  time  of  peace." — Conversation 
with  Gourgand.* 

Notwithstanding  these  and  similar  contemporaneous  expositions,  has  it 
been  insisted  here  by  two  of  my  very  eminent  predecessors,  [Mr.  WRIGHT 
and  Mr.  Dix,]  as  well  as  by  others,  that  this  confessed  form  of  the  treaty 
was  a  mere  diplomatic  artifice  ;  that  the  treaty  was  not  an  exchange  of 
equivalents ;  and  that  the  claims  for  spoliations  were  renounced  because 
they  could  not  be  enforced,  and  not  for  an  adequate  and  admitted  consid- 
eration. Sir,  did  Oliver  Ellsworth  and  his  colleagues  combine  to  practice 
a  diplomatic  fraud  upon  France  ?  Certainly  not.  Were  they  then  circum- 
vented ?  If  we  should  grant  that  they  were,  there  would  yet  remain  John 

*Mr.  Jefferson  to  Mr.  Madison,  April  3.  1794  : 

"  As  to  the  guarantee  of  the  French  islands,,  whatever  doubts  may  be  entertained 
of  the  moment  at  which  we  ought  to  interpose,  yet  I  have  no  doubt  but  that  we 
ought  to  interpose  at  a  proper  time,  and  declare,  both  to  England  and  France,  that 
these  islands  are  to  rest  with  France,  and  that  we  will  make  a  common  cause  with 
the  latter  for  that  object."— Jefferson's  Works,  Vol.  3,  Page  303. 

Mr.  Livingston,  our  Minister  at  Paris,  to  Mr.  Madison,  Secretary  of  State,  Paris, 
September  16,  1801  : 

"  France  is  greatly  interested  in  our  guarantee  of  their  islands,  particularly  since 
the  changes  that  have  taken  place  in  the  West  Indies,  and  those  which  they  may 
have  still  reason  to  apprehend.  I  do  not  therefore  wonder  at  the  delay  of  the 
[French]  ratification,  [of  the  Convention  of  1800,]  nor  shall  I  be  surprised  if  she 
consents  to  purchase  it  by  the  restoration  of  our  captured  vessels." — Senate  Docu- 
ments, First  Session  Nineteenth  Congress,  Vol.  5,  Doc.  445,  Page  700. 

And  again,  dated  January  13,  1802 : 

"The  reluctance  we  have  shown  to  a  renewal  of  the  treaty  of  1778  has  created 
many  suspicions.  Among  other  absurd  ones,  they  believe  seriously  that  we  have 
an  eye  to  the  conquest  of  their  islands.  This  business  of  Louisiana  also  originated 
in  that ;  and  they  say  expressly  that  they  could  have  had  no  pretence,  so  far  as  re- 
lated to  the  Floridas,  to  make  this  exchange,  had  the  treaty  been  renewed,  since, 
by  the  6th  article,  they  were  expressly  prohibited  from  touching  the  Floridas.  I 
own  I  have  always  considered  this  article,  and  the  guarantee  of  our  Independence, 
as  more  important  to  us  than  the  guarantee  of  the  islands  was  to  France  ;  and  the 
sacrifice  we  have  made  of  an  immense  sum  to  get  rid  of  it  as  a  dead  loss." — Same, 
Page  704,  No.  447. 

(e  Such  was  the  state  of  things  when  three  American  negotiators  arrived  at  Paris, 
led  thither  by  the  desire  and  the  hope  of  preventing  a  signal  rupture. 

"  American  commerce  was  alleged  to  have  suffered  considerable  losses — the  ne- 
gotiators demanded  indemnity  for  them. 

"  The  French  Government  had  also  to  allege  claims  for  her  commerce  which 
had  suffered  for  a  long  time  ;  it  recognised  that  it  was  just  to  liquidate,  compensate, 
and  close,  if  it  were  possible,  the  indemnities  which  might  be  respectively  due, 
&c." — Code  Diplomatique,  Session  o/26  November,  1801. 

Mr.  Madison,  Secretary  of  State,  to  Mr.  Charles  Pinckney,  United  States  Minis- 
ter to  Spain,  February  6,  1804  : 

"The  claims,  again,  from  which  France  was  released,  were  admitted  by  France, 
anil  the  release  was  for  a  valuable  consideration,  in  a  correspondent  release  of  the 
United  States  from  certain  claims  on  them." — Page  795,  No.  506. 

2 


16 

Adams,  President  in  1800,  and  Thomas  Jefferson,  President  in  1801,  and 
the  Senate  of  those  years,  all  equally  compromited.  Who  will  impeach 
their  intelligence  or  their  directness  ?  Sir,  upon  whom  shall  we  rely  to 
vindicate  our  own  less  deserved  and  ephemeral  fame,  if  we  strike  so  rudely 
the  monuments  where  these  great  names  lie  sleeping. 

If  the  United  States  can  plead  fraud  in  this  or  any  other  case,  how  shall 
creditors  or  allies,  individuals  or  States,  learn  to  distinguish  between  obli- 
gations which  we  admit  to  be  valid  and  those  which  we  claim  a  right  to 
repudiate  ? 

No,  sir  ;  we  cannot  raise  such  a  defence.  Nor  could  it  be  maintained. 
No  one  questions  the  sincerity  of  the  United  States  in  prosecuting  these 
claims.  France  was  equally  sincere  in  admitting  them,  and  in  preferring 
her  own.  Even  in  her  piratical  decrees,  she  pleaded  an  overpowering 
pressure,  and  promised  reparation  : 

"  Being  informed  that  some  French  privateers  have  taken  vessels  belonging  to 
the  United  States  of  America,,  I  hasten  to  engage  you  to  take  the  most  speedy  and 
efficacious  means  to  put  a  stop  to  this  robbery."— Monge,  Minister  of  Marine,  to 
the  Ordonnateurs  of  France,  March  30,  1793. 

Thus  France  was  ingenuous  even  in  her  agony  of  social  convulsion. 

"  Although  it  [the  treaty  of  1778]  is  reciprocal  upon  the  whole,  some  provisions 
are  more  specially  applicable  to  the  fixed  position  of  the  United  States,  and  others 
have  allusion  only  to  the  eventual  position  of  France.  The  latter  has  stipulated 
few  advantages — advantages  which  do  not  in  any  respect  injure  the  United  States, 
and  the  lawfulness  of  which  no  foreign  nation  can  contest.  The  French  nation  ioiU 
never  renounce  tliem." — M.  Talleyrand  to  Mr.  Gerry,  January  18,  1798. 

The  Convention  of  1800  was  then,  in  fact  as  well  as  in  form,  a  treaty  of 
equivalents.  Can  the  United  States  impeach  it  now,  on  the  ground  of  the 
inadequacy  of  the  equivalent  received  ?  Certainly  not,  sir.  It  is  too  late ; 
the  parties  are  changed.  The  merchants'  claims  are  just  the  same,  whether 
you  received  an  adequate  equivalent,  or  exchanged  their  demands  for  an 
insufficient  consideration. 

Nevertheless,  let  us  pursue  the  objection,  You  say  that  however  intrin- 
sically just  the  claims  may  have  been,  they  were  renounced  because  you 
could  not  collect  them  without  resort  to  war.  I  reply,  a  just  claim  against 
a  civilized  State  is  never  valueless.  If  the  State  is  insolvent  to-day,  it 
may  become  able  to  pay  to-morrow ;  if  it  refuses  to  be  just  to-day, 
it  may  become  more  just  to-morrow.  It  is  true  that  the  United  States 
were  not  bound  to  declare  war  for  the  claims,  but  it  is  equally  true  that 
they  had  no  right  to  confiscate  them  without  indemnity.  Thus  we  have 
reached  one  of  the  main  defences  against  these  claims,  viz  : 

Fifthly.  That  the  ancient  treaties  had  become  void  as  against  the  United 
States,  and  therefore  the  release  of  them  by  France  in  1800  was  valueless. 


IT 

This  argument  involves  two  propositions  : 

1.  That  France  flagrantly  violated  those  compacts. 

2.  That  the  United  States  perfectly  fulfilled  them. 

1.  That  France  flagrantly  violated  those  compacts.  The  chief  object  of 
the  treaties  of  1778  was  the  establishment  of  the  Liberty,  Sovereignty,  and 
Independence  of  the  United  States,  in  the  war  of  the  Revolution,  and  for- 
ever afterwards.  France  fulfilled  her  guarantee  in  the  Revolution.  But 
the  merit  of  that  fulfilment  is  denied.  It  was  said  by  one  of  rny  predeces- 
sors, [Mr.  Dix,]  that  France  was  not  moved  by  generosity  or  sympathy 
in  entering  into  the  treaties,  or  in  fulfilling  them.  Sir,  a  nation  whose  pride 
can  condescend  so  far  as  to  receive  benefits,  vindicates  itself  fully  by  the 
exercise  of  unquestioning  and  enduring  gratitude. 

Sir,  interest  and  ambition  do  indeed  too  often  mingle  with  the  purest 
and  highest  of  human  motives,  not  less  of  States  than  of  individuals.  But 
the  character  of  motives  must  be  determined  by  the  character  of  the  ac- 
tions in  which  they  result.  Sir,  in  the  strait  of  the  Revolution,  your  agents 
applied  for  aid,  not  to  the  King  of  France  only,  but  also  to  the  Emperor 
of  Germany,  to  the  Kings  of  Spain  and  Prussia,  and  to  the  Grand  Duke  of 
Tuscany.  From  neither  of  them  could  they  gain  so  much  as  a  protest  to 
discountenance  the  hire  of  mercenaries  by  the  German  Princes  to  the 
King  of  Great  Britain,  to  be  employed  with  savage  Indian  tribes  against  us. 
But  France  yielded  money,  volunteers,  recognition,  and  armed  alliance* 
Was  there  no  merit  in  that  ? 

It  is  true  that  in  our  oppressor  France  found  a  rival  to  humble  and  over- 
throw. But  had  Britain  no  other  rival  or  enemy  than  France  ?  If  there 
were  others,  why  did  we  not  win  them  to  our  side  ?  France  did  indeed 
exact  a  guarantee  from  the  United  States  in  exchange  for  her  own.  But 
did  we  find  any  other  Power  willing  to  enter  into  such  an  exchange  ? 
Moreover,  France  conceded  to  us  all  the  conquests  which  should  be  made 
by  the  allied  armies,  in  the  war  of  the  Revolution,  except  such  as  would 
have  been  useless  to  us,  and  even  including  the  Canadas,  of  which  we 
had  so  recently  assisted  to  deprive  her ;  and  she  insisted  on  no  remunera- 
tion after  the  war  should  end.  Was  there  no  magnanimity  in  that  ? 

France  was  not  actuated  chiefly  by  ambition  or  revenge  in  making  the 
engagements  of  1778.  The  People  and  even  the  Court  were  filled  with  en- 
thusiastic admiration  of  the  United  States  and  of  their  cause.  Fenelon  had 
already  educated  even  Royalty  in  that  cause,  in  the  palace  and  under  the 
eye  of  the  Grand  Monarque.  The  court,  the  army,  the  navy,  the  rulers  and 
the  people  of  France,  had  no  standard  of  a  hero  but  Washington,  no  model 
of  a  philosopher  but  Franklin,  nor  of  a  State  but  the  United  States.  Seven- 
teen years  ago  I  traversed  the  now  deserted  and  desolate  chambers  of  the 
Bourbons  of  France.  Never  shajl  I  forget  the  grateful  pride  I  felt  when  I 


18 

found  among  the  family  pictures  of  the  House  of  Orleans  one  which  com- 
memorated the  visit  of  Franklin  to  the  Palais  Royale,  and  among  the  illus- 
trations of  the  national  glory  at  Versailles,  one  that  celebrated  the  surrender 
of  Cornwallis.  The  failure  of  Louis  XVI  as  a  King  resulted  from  his  at- 
tempting, like  Nerva  in  ancient  Rome,  and  like  Pio  Nono  in  modern  Rome, 
to  combine  the  two  incompatible  things,  the  enlargement  of  popular  free- 
dom with  the  maintenance  of  regal  power.  Nor  may  we  undervalue  the 
aid  received  from  France.  It  decided  the  contest.  It  cost  her  more  than 
three  hundred  millions  of  dollars,  and  hurried  her  into  a  Revolution  more 
exhausting  than  any  other  State,  in  the  tide  of  time,  has  endured. 

Thus  it  appears  that  France  fulfilled  faithfully  and  completely  her  chief 
engagements  in  the  treaties  of  1778,  while  it  is  admitted  that  she  failed 
afterwards  in  less  essential  obligations,  but  with  protestations  of  adherence 
and  promises  of  reparation. 

2.  Did  the  United  States  completely  and  absolutely  fulfil  their  reciprocal 
obligations  ?  When  the  war  of  1793  broke  out,  France  held  all  the  posses- 
sions in  America  which  they  had  guarantied  to  her  forever,  and  they  were  all 
exposed.  Yet  the  United  States  never  defended  nor  attempted  to  defend 
them ;  never  devoted  a  life  nor  even  a  dollar  to  that  end.  Thus,  instead 
of  standing  on  fulfilment,  we  are  at  once  brought  to  the  necessity  of  justi- 
fying a  non-performance  of  the  engagements.  The  justification  has  been 
placed  on  several  grounds,  viz : 

1.  That  France  did  not  demand  fulfilment. 

Such  an  inference  is  warranted  by  some  of  the  papers  before  us,  but 
there  are  others  which  leave  the  fact  very  doubtful : 

"  I  beg  you  to  lay  before  the  President  of  the  United  States,  as  soon  as  possible, 
the  decree  and  the  enclosed  note,  and  to  obtain  from  him  the  Cabinet  decision,  either 
as  to  the  guaranty  that  I  have  claimed  the  fulfilment  of  for  our  colonies,  &,c." — E. 
C.  GeneVs  Letter  of  November  14,  1793.* 

But  if  France  did  not  demand  the  performance  of  the  guaranty  in  the 
war,  she  insisted  on  its  obligation.  The  United  States  practically  disavowed 
and  renounced  it.  The  proposition  is  self-evident.  The  treaty  stipulated 
Alliance,  when  France  should  demand  it.  The  United  States  assumed 
Neutrality  in  every  event. 


*  Mr.  Genet  to  Mr.  Jefferson,  Secretary  of  State,  dated  September  18,  1793: 
[Extract.']  "  That  the  Secretary  of  War,  to  whom  I  communicated  the  wish  of 
our  Government  of  the  Windward  Islands  to  receive  promptly  some  fire-arms  and 
some  cannon,  which  might  put  into  a  state  of  defence  possessions  guarantied  by 
the  United  States,  had  the  front  to  answer  me,  with  an  ironical  carelessness,  that 
the  principles  established  by  the  President  did  not  permit  him  to  lend  us  so  much 
as  a  pistol." — Senate  Documents,  First  Session  Nineteenth  Congress,  Vol.  5,  No. 
132,  P«ge219. 


19 

2.  The  non-performance  by  the  United  States  has  been  justified  on  the- 
ground  that  the  casus  fcederis  of  the  stipulated  guaranty  was  a  defensive 
war,  and  that  the  war  of  1793  was  not  of  that  character. 

In  reply  to  this  argument,  I  observe,  in  the  first  place,  that  the  terms  of 
the  Treaty  of  Alliance  stipulated  for  the  execution  of  the  guaranty  in  the 
case  of  "  war  to  break  out:"  Any  war,  offensive  or  defensive.  But  the 
Senator  from  Virginia  [Mr.  HUNTER]  overpowers  us  with  an  argument 
which  by  me  is  irresistible.  He  says  that  only  a  defensive  war  must  have 
been  contemplated,  because  a  stipulation  for  aid  and  alliance  in  an  ag- 
gressive war  would  be  immoral,  unjust,  and  therefore  void.  Sir,  I  acknowl- 
edge that  higher  law  of  universal  and  eternal  justice.  And  I  admit  that 
all  laws  of  States,  and  all  treaties  and  compacts  between  States,  which 
contravene  its  sacred  provisions,  are  utterly  void  and  of  no  effect.  I  accept 
therefore  the  Senator's  definition  of  the  casus  faderis ;  that  it  was  a  defen- 
sive war.  I  controvert,  and  I  rest  my  cause  upon  controverting,  his  as- 
sumption, that  the  war  of  1793,  between  the  Allied  Powers  and  France, 
was  on  her  part  an  aggressive  and  not  a  defensive  war. 

The  very  proclamation  of  neutrality  implies  a  denial  of  that  assumption. 
The  war  therein  described  is  a  war  '•'  between  Austria,  Prussia,  Sardinia, 
Great  Britain,  and  the  United  Netherlands,  of  the  one  part,  and  France,  on 
the  other."  Why  was  the  aggressor  the  last  party  to  be  named  ?  But 
History  has  determined  the  character  of  the  parties  in  that  momentous 
contest. 

"The  first  war  of  the  French  Revolution,"  says  Wheaton,  in  his  History 
of  the  Law  of  Nations,  "  originated  in  the  application  by  the  Allied  Powers 
of  the  principle  of  armed  intervention  to  the  internal  affairs  of  France,  for 
the  purpose  of  checking  the  progress  of  her  revolutionary  principles  and 
the  extension  of  her  military  power."4  War  was  declared,  indeed,  by 
France,  but  only  as  a  reply  to  the  ultimatum  of  a  Restoration  of  Despotism 
tendered  by  the  Armed  League  of  Enemies. 

Thus,  sir,  we  have  arrived  at  the  true  ground  of  defence  of  the  neutrality 
of  1793,  to  wit :  that  performance  of  the  treaty  was  impossible. 

*  Those  who  assume  that  the  Treaty  of  Alliance  with  France  of  1778  provided 
only  for  future  defensive  war,  forget  that  that  treaty  itself  was  in  its  letter  and  spirit 
offensive  war  on  the  part  of  France  against  England — it  was  negotiated  expressly 
for  that  purpose — was  so  regarded  and  adopted  by  England — was  so  understood  by 
all — and  so  fully  established  by  the  result. 

And  they  also  forget  that  the  war  between  England  and  France  of  1793  was 
defensive  on  the  part  of  France. 

A  brief  history  of  that  war  will  correct  their  error  : 

England  began  the  war  in  1791  first  by  entering  into  the  treaty  of  Pavia  of  July 


20 

Sir,  in  a  practical  sense,  performance  was  impossible.  First,  on  account 
of  the  condition  of  France.  The  parties  in  1778  of  course  expected  that 
France  would  remain  an  organized  State,  capable  of  conducting  combined 
operations  under  the  treaty,  upon  a  method  and  towards  an  end,  without 
danger  from  herself  to  her  ally.  But  it  was  not  so  with  France.  She  be- 
came not  merely  revolutionary,  but  disorganized,  having  no  certain  and 
permanent  head,  no  stable  and  effective  legislature.  All  the  organs  of  the 
State  were  shattered,  broken,  and  scattered.  "  JVec  color  imperil,  nee  fr OTIS 
erat  ulla  Senatus" 

The  King,  after  unavailing  changes  of  ministry,  convened  the  Assembly 
of  the  Notables.  After  holding  the  bed  of  justice,  and  after  attempting  to 

6,  of  that  year,  and  then  of  the  treaty  of  Pilnitz  of  27th  August  following,  for  the 
restoration  of  the  King's  prerogatives,  and  the  partition  of  considerable  part  of  the 
French  territory. 

In  1791  and  1792,  England  furnished,  in  secret,  arms  and  succors  to  the  emigrants 
who  were  in  arms  against  France. 

In  November,  1792,  (three  months  before  the  declaration  of  war  by  France,)  the 
English  Ministry  directed  the  detention  of  all  vessels  in  the  ports  of  England,  and 
bound  to  France.  And  Parliament  subsequently  passed  a  law  prohibiting  the  ex- 
portation of  provisions  to  France. 

In  December,  1792,  Parliament  authorized  the  Executive  to  expel  aliens  from  the 
country — specially  directed  against  the  French. 

In  January,  1793,  the  Prussians  took  possession  of  the  Hanse  towns  ;  French 
and  other  neutral  vessels,  to  escape  capture,  left  the  ports,  but  had  scarcely  reached 
the  sea  when  they  were  detained  and  sent  into  England. 

The  historian  has  recorded  those  acts  in  the  following  strong  terms  : 

"  These  violations  of  the  law  of  nations,  of  treaties,  and  of  neutral  rights,  were 
committed  when  England  was  in  a  declared  state  of  neutrality  and  peace  with 
France  ;  and  whilst  a  French  Minister  was  in  London,  begging  the  Ministry  to  re- 
main in  peace,  and  to  permit  the  exportation  of  provisions  to  keep  his  countrymen 
from  starving.  So  atrocious,  indeed,  were  these  acts,  that  the  British  Ministry  were 
•compelled  to  take  refuge  under  an  act  of  indemnity  to  escape  impeachment  and  pun- 
ishment. Alluding  to  those  outrages,  m  a  debate  in  the  House  of  Commons  in  Jan- 
uary, 1793,  Mr.  Fox  said  :  '  The  prohibition  to  allow  the  exportation  of  provisions 
to  France,  whilst  they  are  allowed  to  be  exported  to  any  other  country,  is  an  act  of 
hostility  so  severe  as  can  have  no  excuse  or  justification  but  in  hostile  acts  of 
France,  and  it  is  not  even  pretended  that  such  hostile  acts  Jiave  taken  place. .'  ': 

On  the  24th  of  January,  1793,  the  British  Government  ordered  the  French  Min- 
ister (Chauvelin)  to  quit  the  kingdom,  and,  to  aggravate  the  insult,  published  the 
order  in  the  London  Gazette.  This  act,  according  to  the  very  letter  of  the  treaty  of 
1786  (article  2)  between  England  and  France,  was  stipulated  and  recognised  as  a 
declaration  of  war. 

And  on  the  1st  of  February,  1793,  France,  seeing  that  all  her  humiliating  sup- 
plications for  peace,  made  through  her  resident  Minister,  Chauvelin,  and  her  spe- 
cial Minister,  Marat,  (who  was  also  ordered  to  quit  England,)  were  only  treated 
with  contempt  and  insult,  declared  war  in  turn  against  England. — Giffbrd's  History 
of  France,  Vol.  4. 


21 

^establish  the  new  plenary  courts,  he  called  the  States  General,  which  soon 
became  a  Constituent  Assembly,  absorbing  all  the  functions  of  government. 
Suddenly  the  People  of  Paris  rose,  and  brought  the  King,  Queen,  and  As- 
sembly, into  captivity.  A  constitutional  monarchy  rose  under  the  dictation 
of  the  People  ;  but  the  King  was  degraded,  condemned,  and  executed, 
and  a  Republic  appeared.  The  Repiblic  went  down  before  the  power  of 
cabals,  which  rapidly  succeeded  each  other,  all  sustaining  their  adminis- 
trations, throughout  a  reign  of  terror,  by  the  tribunal  of  blood.  These  un- 
natural convulsions  could  have  but  one  end — the  restoration  of  the  State 
by  a  Dictator.  That  magistrate,  in  1800,  appeared  in  the  person  of  Na- 
poleon. When  and  where,  before  that  event,  could  the  United  States  have 
been  required  to  go  to  the  aid  of  France  ?  It  was  well  that  France  had  re- 
gained her  liberty  ;  but  her  ally  had  a  right,  before  going  into  a  war  with 
her  against  Europe,  to  see  that  liberty  combined  with  government  and  with 
public  force — with  national  morality,  with  social  order,  and  with  civil  man- 
ners. All  this  was  wisely  deemed  by  Washington  necessary  to  secure  the 
United  States  against  absolute  danger,  and  to  render  their  alliance  at  all 
useful  to  France.  For,  on  what  side  were  the  United  States  to  array  them- 
selves ?  With  the  King  while  he  yet  held  the  reins  of  state,  or  with  the 
National  Assembly  while  abolishing  the  monarchy  ?  With  the  ephemeral 
Directories,  which  governed  France  through  the  guillotine,  or  with  the 
Counter-Revolutionists,  struggling  to  restore  internal  peace  and  repose  ? 
Well  did  Mr.  Jefferson  say,  that  if  the  United  States  had  panted  for  war 
as  much  as  ancient  Rome — if  their  armies  had  been  as  effective  as  those  of 
Prussia — if  their  coffers  had  been  full  and  their  debts  annihilated — even 
then,  peace  was  too  precious  to  be  put  at  hazard,  in  an  enterprise  with  an 
ally  thus  deranged  and  disorganized. 

And  what  was  the  condition  of  the  United  States,  that  they  should  peril 
all  in  the  domestic  rage  of  France  and  her  foreign  strife  ?  Mr.  Jefferson 
was  no  false  interpreter,  and  he  thus  described  it.  "  An  infant  country, 
deep  in  debt,  necessitated  to  borrow  in  Europe — without  a  land  or  naval 
force — without  a  competency  of  arms  and  ammunition — with  a  commerce 
connected  beyond  the  Atlantic — with  the  certainty  of  enhancing  the  price 
of  foreign  productions,  and  of  diminishing  that  of  our  own — with  a  Con- 
stitution little  more  than  four  years  old,  in  a  state  of  probation,  and  not 
exempt  from  foes."  No  greater  calamity  than  war  could  then  have  fallen 
upon  the  United  States,  nor  could  war,  in  any  other  case,  ever  come  in  a 
form  so  fearful.  It  was  not  a  fault  of  Washington,  as  it  was  of  Cato,  not 
to  see  that  public  affairs  were  incapable  of  perfection,  and  that  States 
could  not  be  governed  without  submitting  lesser  interests  to  greater.  On 
the  contrary,  the  measure  of  his  duty  was  that  of  Cicero  in  the  consul- 
ship— to  take  care  that  the  Republic  should  suffer  no  detriment.  Well 


22 

and  wisely  did  he  perform  that  duty.  He  could  not  aid  France,  but  he 
saved  his  own  country.  Forever,  then,  let  the  justice  and  the  wisdom  of 
Washington,  in  that  memorable  crisis,  stand  vindicated  and  established.* 

But  what  does  all  this  prove  ?  Just  this,  and  no  more  :  That  circum- 
stances, affecting  France  and  the  United  States  equally,  unforeseen  and 
imperious,  prevented  the  United  States  from  even  undertaking  to  perform 
their  compact  with  France,  in  the  way  stipulated  in  a  particular  emergency. 
But  the  circumstances  creating  this  impossibility  were  not  alone  the  fault 
nor  the  misfortune  of  France,  but  arose  in  part  out  of  their  own  condition; 
and  the  omission  to  perform  their  agreement  assured  the  safety  and  pro- 
moted the  welfare  of  the  United  States.  Under  such  circumstances,  the 
United  States  owed  to  France,  if  not  indemnities  for  past  non-performance, 
at  least  recognition  and  renewal  of  the  ancient  treaties.  If,  then,  France 
was  held  by  the  treaties,  because  the  United  States  excused  their  non- 
performance,  they  were  equally  bound  to  extenuate  her  deviations,  under 
such  a  pressure,  from  prudence,  order,  and  even  from  justice,  if  she  were 
willing  to  make  reparation.  None  knew  so  well  as  they,  that  France  broke 
the  treaties  in  less  essential  obligations,  not  from  want  of  virtue  to.  be 
faithful,  but  from  want  of  magistracy  to  enforce  fidelity.  But  while  France 
was  always  willing  to  make  reparation,  the  United  States  insisted  on  being 
absolutely  free  from  obligations.  Jay's  treaty  was  confessedly  injurious  to 
France.  Either  that  treaty  was  necessary  to  the  United  States,  or  it  was 
unnecessary.  If  it  was  unnecessary,  the  complaints  of  France  were  just. 
If  necessary,  then  she  was  entitled  to  equivalents.  A  release  from  the  en- 
gagements in  the  ancient  treaties  was  necessary tto  the  United  States,  or  it 
was  not.  If  it  was  not  necessary,  then  the  United  States  ought  not  to  have 
bartered  the  merchants'  claims  away  for  it.  If  it  was  necessary,  then  the 
United  States  received  an  adequate  equivalent. 

Thus  it  appears  that  the  ancient  treaties  had  not  lost  their  obligation 
against  the  United  States  by  reason  of  any  flagrant  violation  of  them  by 
France. 

Sixthly.  The  opponents  of  this  bill  next  insist  that  the  treaties  had  been 
abrogated  by  an  act  of  Congress  which  was  passed  on  the  1th  day  of  July, 
1798,  viz : 

*  Mr.  Jefferson  to  Mr.  Gerry,  June  21,  1797  : 

"  It  is  with  infinite  joy  to  me  that  you  were  yesterday  announced  to  the  Senate 
as  Envoy  Extraordinary,  jointly  with  Gen.  Pinckney  and  Mr.  Marshall,  to  the 
French  Republic.  It  gave  me  certain  assurances  that  there  would  be  a  preponder- 
ance in  the  mission  sincerely  disposed  to  be  at  peace  with  the  French  Government 
and  nation.  Peace  is  undoubtedly  at  present  the  first  object  of  our  nation.  Interest 
and  honor  are  also  national  considerations.  But  interest,  duly  weighed,  is  in  favor 
of  peace,  even  at  the  expense  of  spoliations,  past  and  future." — Jefferson'*  Works, 
Vol.  3,  Page  359. 


23 

"  Whereas  the  treaties  concluded  between  the  United  States  and  France  hare 
been  repeatedly  violated  on  the  part  of  the  French  Government,  and  the  just  claims 
of  the  United  States  for  reparation  of  the  injuries  so  committed  have  been  refused, 
and  their  attempts  to  negotiate  an  amicable  adjustment  of  all  complaints  between 
the  two  nations  have  been  repelled  with  indignity ;  and  whereas,  under  the  author- 
ity of  the  French  Government,  there  is  yet  pursued  against  the  United  States  a 
system  of  predatory  violence,  infracting  the  said  treaties,  and  hostile  to  the  rights  of 
a  free  and  independent  nation — • 

"  Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United  States  of 
Jlm&ica  in  Congress  assembled,  That  the  United  States  are  of  right  freed  and  exon- 
erated from  the  stipulations  of  the  Treaties  and  of  the  Consular  Convention  hereto- 
fore concluded  between  the  United  States  and  France,  and  that  the  same  shall  not 
henceforth  be  regarded  as  legally  obligatory  on  the  Government  or  citizens  of  the 
United  States."— Statutes  at  Large,  I,  p.  578. 

The  treaty-making  power  is  vested,  not  in  Congress,  but  in  the  Presi- 
dent, by  and  with  the  advice  and  consent  of  the  Senate.  A  valid  treaty 
can  be  abrogated  only  by  the  power  which  is  competent  to  make  one.  A 
treaty  already  void  needs  no  act  of  Congress  or  of  the  President  or  of  the 
Senate  to  abrogate  it,  while  one  not  void  cannot  be  abrogated  except  in  the 
constitutional  way. 

A  treaty,  moreover,  is  the  act  of  two  parties.  Neither  can  dissolve  it 
without  the  concurrence  of  the  other.  The  act  of  Congress,  then,  left  the 
obligations  of  the  ancient  treaties,  so  far  as  France  was  concerned,  and 
so  far  as  the  United  States  politically  were  concerned,  just  as  it  found 
them.* 

*  Mr.  Calhoun,  Secretary  of  State,  to  Mr.  Shannon — Instructions : 
[Extract.]  "  Another  question  of  very  grave  importance,  and  which  is  still 
pending  between  the  two  Governments,  grows  out  of  the  Mexican  decree  of  the 
23d  September,  1843,  prohibiting  foreigners  resident  in  Mexico  from  engaging  in 
the  retail  trade.  Your  predecessor,  Mr.  Thompson,  was  instructed  to  protest 
against  the  application  of  this  decree  to  the  citizens  of  the  United  States,  as  a  direct 
and  palpable  infringement  of  the  3d  article  of  the  treaty  of  1831,  and  incompatible 
with  other  stipulations  contained  in  it. 

"  The  Mexican  Minister  for  Foreign  Affairs  attempts  to  sustain  the  decree  on 
the  general  ground  that,  by  the  treaty,  the  citizens  of  each  country,  resident  in  the 
others,  are  subject  to  their  respective  laws  and  usages.  This,  as  a  general  truth, 
may  be  admitted  ;  but  surely  it  cannot  be  pretended  that  rights  guarantied  by  treaty 
between  two  independent  Powers  may  be  abridged  or  modified  by  the  municipal  regu- 
lations of  one  of  the  parties,  without  and  against  the  consent  of  tlie  other.  Such  a  po- 
sition is  so  utterly  untenable  tliat  it  would  be  needless  to  dwell  on  it." — Senate  Docu- 
ments, Second  Session  Twenty-Eighth  Congress,  Vol.  I,  Doc.  I,  Page  22-'3. 

From  the  Federalist,  Page  405  : 

"  Others,  though  content  that  treaties  should  be  made  in  the  mode  proposed,  are 
averse  to  their  being  the  supreme  law  of  the  land.  They  insist,  and  profess  to  be- 
lieve, that  treaties,  like  acts  of  Assembly,  should  be  repealable  at  pleasure.  This 
idea  seems  to  be  new  and  peculiar  to  this  country  ;  but  new  errors,  as  well  as  new 
truths,  often  appear.  These  gentlemen  would  do  well  to  reflect,  that  a  treaty  is  only 


24 

Seventhly.  As  a  last  resort,  the  opponents  of  these  claims  assert  that  the 
release  of  the  ancient  treaties  was  valueless,  because  they  had  been  abrogated 
by  war  between  the  two  nations. 

I  waive  the  objection  that  these  treaties  were  of  such  a  nature  that  they 
could  not  be  abrogated  by  war,  and  I  simply  deny  that  any  such  war  oc- 
curred. 

If  war  did  take  place,  it  must  have  begun  in  some  way  and  at  some  time, 
and  have  ended  in  some  other  way  and  at  some  other  time. 

It  is  quite  certain  that  France  never  declared  war  against  the  United 
States,  and  equally  so  that  the  United  States  never  declared  war  against 
France.  There  were  hostilities  between  them,  but  hostilities  are  not 
always  war.  The  statute  book  of  the  United  States  shows  the  nature  and 
extent  of  these  hostilities. 

We  were  not  at  war  with  France  on  the  14th  of  January,  1797 ;  for  on 
that  day  Congress  declared  it  a  misdemeanor  for  an  American  to  engage 
in  privateering  against  nations  with  whom  the  United  States  were  at  peace, 
and  we  know  that  France  was  then  regarded  as  standing  in  that  relation 
because  the  United  States  afterwards  authorized  privateering  against  her 
in  certain  cases. 

We  were  not  at  war  with  France  on  the  28th  of  May,  1798 ;  for  on  that 
day  Congress  directed  that  a  provisional  army  should  be  raised  in  the  event 
of  a  declaration  of  war  against  the  United  States,  or  of  actual  invasion  of 
their  territory  by  a  foreign  Power,  or  of  imminent  danger  of  such  invasion. 

Nor  were  we  at  war  with  France  on  the  13th  of  June,  1798  ;  for  on  that 
day  Congress  suspended  commercial  relations  with  France — a  measure 
quite  unnecessary,  if  war  had  already  broken  up  that  intercourse. 

Nor  were  we  at  war  on  the  25th  of  June,  1798  ;  for  on  that  day  Con- 
gress authorized  American  vessels  to  oppose  and  resist  searches,  restraints, 
and  seizures,  by  armed  vessels  of  France.  Such  opposition  and  resistance 
would  have  needed  no  sanction  if  committed  in  open  war. 

We  were  not  at  war  with  France  on  the  2d  day  of  March,  1799  ;  for  on 
that  day  Congress  authorized  the  President  to  levy  and  organize  addi- 
tional regiments,  in  case  war  should  break  out  between  the  United  States 
and  a  foreign  European  Power. 

We  were  not  yet  at  war  on  the  20th  of  February,  1800 ;  for  on  that  day 

another  name  for  a  bargain ;  and  that  it  would  be  impossible  to  find  a  nation  who 
would  make  any  bargain  with  us,  which  should  be  binding  on  them  absolutely,  but  not 
on  us  only  so  long  and  so  far  as  we  may  think  proper  to  be  bound  by  it.  They  who 
make  laws  may,  without  doubt,  amend  or  repeal  them ;  and  it  will  not  be  disputed 
that  they  who  make  treaties  may  alter  or  cancel  them;  but  let  it  not  be  forgot  that 
treaties  are  made  not  by  one  only  of  the  contracting  parties,  but  by  both ;  and,  con- 
sequently, that  as  the  consent  of  both  was  essential  to  their  formation  at  first,  so 
must  it  ever  afterwards  be  to  alter  or  cancel  them." 


25 

Congress  directed  that  all  further  enlistments  should  be  suspended,  unless 
during  the  recess  of  Congress  and  during  the  existing  differences  (which 
existing  differences  the  sequel  will  show  were  not  war)  between  the  United 
States  and  France,  or  imminent  danger  of  invasion  of  the  territory  of  the 
United  States  by  that  Republic,  should,  in  the  opinion  of  the  President,  be 
deemed  to  have  arisen. 

Finally,  we  were  not  at  war  on  the  30th  of  September,  1800  ;  for  on  that 
day  the  then  "  existing  differences"  between  France  and  the  United 
Stales  were  adjusted  by  a  Convention,  concluded  on  the  basis  that  although, 
in  the  opinion  of  the  United  States,  the  aggressions  of  France  would 
'"  well  have  justified  an  immediate  declaration  of  war,  yet  that  they  had 
nevertheless  been  desirous  of  maintaining  peace,  and  of  leaving  open  the 
door  of  reconciliation  with  France,  and  had  therefore  contented  themselves 
with  preparations  for  defence,  and  measures  calculated  to  protect  their 
commerce." — Instructions  to  American  Ministers  at  Paris,  October  22, 
1799.* 

*  "  In  consequence  of  this  bill,  [act  ot  Congress  of  July  7, 1798,  declaring  the  trea- 
ties with  France  '  shall  not  henceforth  be  regarded  as  legally  obligatory  on  the  Gov- 
ernment or  citizens  of  the  United  States,']  the  American  Government  suspended 
the  commercial  relations  of  the  United  States  with  France,  and  gave  to  privateers 
permission  to  attack  the  armed  vessels  of  the  Republic.  The  national  frigates  were 
ordered  to  seek  them,  and  to  fight  them.  A  French  frigate  and  sloop  of  war, 
successively  and  unexpectedly  attacked  by  the  Americans,  were  obliged  to  yield  to 
force ;  and  the  French  flag,  strange  versatility  of  human  affairs,  was  dragged,  hu- 
miliated before  the  same  people,  who,  a  little  while  ago,  with  eager  shouts,  had 
applauded  its  triumph .  'Twas  getting  past  recovery  j  war  would  have  broken  out 
between  America  and  France,  if  the  Directory,  changing  its  system,  and  following 
the  counsels  of  prudence,  had  not  opposed  moderation  to  the  unmeasured  conduct 
of  the  President  of  the  United  States.  In  this  way,  it  rendered  null  the  projects  of 
the  American  ministry,  which  would  have  declared  war  against  us  if  it  had  only 
its  wishes  to  consult.  But  in  being  the  first  to  move  in  the  rupture  which  it  de- 
sired, it  would  have  feared  its  inability  to  rally  all  the  people  around  it  ;  in  order  to 
avoid  this  danger,  it  felt  the  necessity  of  conquering  the  repugnance  which  the 
Americans  had  for  war,  and  of  silencing  the  sentiments  which  would  have  made 
them  regret  to  take  up  arms  against  us.  It  is  with  this  view  that,  by  hostile  meas- 
ures, it  was  provoking  from  our  part  a  declaration  of  war,  which,  putting  the  ag- 
gression on  our  side,  would  not  have  left  to  any  American  the  possibility  of  isola- 
ting himself  from  his  Government. 

"  Although  the  French  Government  might  refuse  to  make  war  on  America, 
nothing  indicated  that  the  latter  might  be  disposed  to  discontinue  her  acts  of  hostili- 
ty, when  suddenly  the  President  of  the  United  States,  fearing  to  find  himself  drawn 
too  far,  determined  to  send  three  ministers  to  France,  immediately  on  being  informed 
that  they  would  be  there  received  with  the  respect  due  to  their  character." — Code 
Diplomatique,  Session  of  December  4,  1801. 

Message  of  President  Jefferson  to  Congress,  December  8,  1801  : 

[Extract.]  "  It  is  a  circumstance  of  sincere  gratification  to  me,  that  on  meeting 
the  great  council  of  the  nation,  I  am  able  to  announce  to  them  on  grounds  of 
reasonable  certainty  that  the  wars  and  troubles,  which  have  for  so  many  years 
afflicted  our  sister  nations,  have  at  length  come  to  an  end ;  and  that  the  communi- 


26 

Thus,  sir,  it  is  shown,  that  if  a  war  existed,  neither  its  beginning,  rior  it& 
end,  nor  the  way  of  either,  can  ever  be  ascertained,  and  that  the  United 
States  were  profoundly  ignorant  of  its  existence.  If  any  man  in  France, 
more  than  another,  would  have  known  the  existence  of  such  a  war,  that 
man  was  Napoleon  Bonaparte.  Yet  we  have  seen  that  the  music  of  this 
"soft  and  silken  war"  never  reached  the  ear  of  the  Great  Captain  of 
France.  For,  in  speaking  of  the  spoliations,  he  described  them  as  having 
been  committed  "in  time  of  peace."  It  was  not  thus  with  the  ether  ene- 
mies of  France,  while  he  was  at  liberty  within  her  borders,  nor  has  it  been  so 
that  the  countrymen  of  Washington,  of  Taylor,  and  of  Scott,  have  con- 
ducted their  campaigns  in  other  conflicts.* 

cations  of  peace  and  commerce  are  once  more  opening  among  them.  Whilst  we 
devoutly  return  thanks  to  the  beneficent  Being  who  has  been  pleased  to  breathe 
into  them  the  spirit  of  conciliation  and  forgiveness,  we  are  bound,  with  peculiar 
gratitude,  to  be  thankful  to  Him  that  our  own  peace  has  been  preserved  through  so 
perilous  a  season,  and  ourselves  permitted  quietly  to  cultivate  the  earth  and  to  prac- 
tice and  improve  those  arts  which  tend  to  increase  our  comforts.  The  assurances 
indeed  of  friendly  disposition  received  from  all  the  powers  with  whom  we  have 
principal  relations,  had  inspired  a  confidence  that  our  peace  with  them  would  not 
have  been  disturbed.  But  a  cessation  of  the  irregularities  which  had  afflicted  the 
commerce  of  neutral  nations,  and  of  the  irritations  and  injuries  produced  by  them, 
cannot  but  add  to  this  confidence ;  and  strengthens,  at  the  same  time,  the  hope  that 
wrongs  committed  on  unoffending  friends  will  now  be  reviewed  with  candor,  and 
will  be  considered  as  founding  just  claims  of  retribution  for  the  past,  and  new  as- 
surance for  the  future." — Wait's  American  State  Papers,  Vol.  4,  Page  325-'26. 

*The  intelligence  in  France  of  the  passage  by  our  Congress  of  the  act  of  July  7,. 
1798,  (with  respect  to  the  treaties  of  1778  with  France,)  induced  that  Government 
to  lay  a  temporary  embargo  on  American  vessels  in  her  ports ;  the  following  cor- 
respondence will  show  its  character : 

Circular  letter  of  the  Minister  of  Marine  and  the  Colonies  to  the  Agents  of  Ma- 
rine at  the  ports  of  the  Republic,  dated  August  13,  1798: 

"  I  remark,  citizen,  by  the  correspondence  of  the  greater  part  of  the  Governors 
of  the  ports,  that  the  embargo  laid  recently  upon  American  vessels  has  produced 
the  detention  of  their  crews.  The  intentions  of  Government  have  been  ill  under- 
stood, by  the  adoption  of  a  measure  that,  in  the  first  place,  compromits  the  safety 
of  those  vessels,  and,  in  the  second,  seems  to  place  us  in  a  hostile  attitude  against 
the  United  States ;  when,  on  the  contrary,  the  acts  of  Government  evince  the  de- 
sire to  maintain  a  good  understanding  between  the  two  Republics.  You  are  there- 
fore required  by  me,  citizen,  to  order,  on  the  receipt  of  these  presents,  the  discharge 
of  all  American  prisoners,  who  might  have  been  considered  as  prisoners  of  war,  in 
consequence  of  the  detention  of  their  vessels." — Page  548,  No.  335. 

And  again,  from  the  same  Minister  to  the  principal  officers,  civil  and  military, 
of  the  ports,  August  18,  1798  : 

"  Our  political  situation  with  regard  to  the  United  States,  citizen,  not  having 
undergone,  up  to  this  day,  any  change  that  might  have  an  influence  upon  the  at- 
tention due  to  neutral  nations,  I  think  it  unnecessary  to  bring  to  your  recollection 
that  no  attempt  should  be  made  against  the  security  and  liberty  of  persons  compos- 
ing the  officers  and  crews  of  every  American  vessel  that  is  found  regular." — Page 
548,  JYb.  336. 


27 

It  appears  from  this  review  that  the  treaties  in  question  had  been  recog- 
nised always  by  both  parties,  and  broken  in  parts  by  both,  but  under  cir- 
cumstances of  excuse  and  palliation  ;  and  that  they  were  therefore  in  force 
when  the  United  States  and  France  mutually  agreed  to  extinguish  them, 
on  the  condition  of  a  release  of  the  claims  for  indemnities.  Of  the  value 
of  that  agreement  it  is  unnecessary  to  say  more,  than  that  without  it  the 
United  States  might  have  been  held  by  the  ancient  treaty  of  alliance  to  have 
followed  to  some  extent  the  varying  fortunes  of  France  through  her  wars 
during  the  Consulate  and  the  Empire,  until  she  found  repose,  from  com- 
plete exhaustion,  on  the  field  of  Waterloo. 

No  reason  for  rejecting  these  claims  remains,  except  that  they  have  not 
been  paid  heretofore.  But  mere  lapse  of  time  pays  no  debts,  and  dis- 
charges no  obligations.  There  has  been  no  release,  no  waiver,  no  neglect, 
no  delay,  by  the  creditors.  They  have  been  here  twenty-five  times  in  fifty 
years  ;  that  is  to  say,  they  have  appeared  in  their  successive  generations, 
before  every  Congress  since  their  claims  against  the  United  States  accrued. 
Against  such  claims  and  such  creditors  there  is  no  prescription. 

It  is  said,  indeed,  that  the  nation  is  unable  to  pay  these  claims  now.  I 
put  a  single  question  in  reply  :  When  will  the  nation  be  more  affluent 
than  now  ? 

The  Senator  [Mr.  HUNTER]  says,  again,  that,  if  the  debts  are  just,  we 
should  pay  the  whole,  and  not  a  moiety  ;  and  that  if  the  claims  are  unjust, 
then  the  bill  proposes  a  gratuity — that  in  the  one  case  the  appropriation  is  too 
small,  and  in  the  other  too  great.  This  is  the  plea  of  him  who,  I  think  it 
was  in  Ephesus,  despoiled  the  statue  of  Jupiter  of  its  golden  robe,  saying, 
Gold  was  too  warm  in  summer,  and  too  cold  in  winter,  for  the  shoulders  of 
the  god. 

Sir,  Commerce  is  one  of  the  great  occupations  of  this  nation.  It  is  the 
fountain  of  its  revenues,  as  it  is  the  chief  agent  of  its  advancement  in  civ- 
ilization and  enlargement  of  Empire.  It  is  exclusively  the  care  of  the 
Federal  authorities.  It  is  for  the  protection  of  Commerce  that  they  pass 
laws,  make  treaties,  build  fortifications,  and  maintain  navies  upon  all  the 
seas.  But  justice  and  good  faith  are  surer  defences  than  treaties,  fortifica- 
tions, or  naval  armaments.  Justice  and  good  faith  constitute  true  national 
honor,  which  feels  a  stain  more  keenly  than  a  wound.  The  nation  that 
lives  in  wealth  and  in  the  enjoyment  of  power,  and  yet  under  unpaid  obli- 
gations, dwells  in  dishonor  and  in  danger.  The  nation  that  would  be  truly 
great,  or  even  merely  safe,  must  practice  an  austere  and  self-denying  mo- 
rality. 

The  faith  of  canonized  ancestors,  whose  fame  now  belongs  to  mankind, 
is  pledged  to  the  payment  of  these  debts.  "  Let  the  merchants  send  hither 
well-authenticated  evidence  of  their  claims,  and  proper  measures  shall  be 


28 

taken  for  their  relief."  This  was  the  promise  of  Washington.  The  evi- 
dence is  here.  Let  us  redeem  the  sacred  and  venerable  engagement. 
Through  his  sagacity  and  virtue,  we  have  inherited  with  it  ample  and  abun- 
dant resources,  and  to  them  we  ourselves  have  added  the  newly  discovered 
wealth  of  Southern  plains,  and  the  hidden  treasures  of  the  Western  coasts. 
With  the  opening  of  the  half  century,  we  are  entering  upon  new  and 
profitable  intercourse  with  the  ancient  Oriental  States  and  races,  while  we 
are  grappling  more  closely  to  us  the  new  States  on  our  own  Continent. 
Let  us  signalize  an  epoch  so  important  in  commerce  and  politics  by  justly 
discharging  ourselves  forever  from  the  yet  remaining  obligations  of  the 
first  and  most  sacred  of  all  our  national  engagements.  While  we  are  grow- 
ing over  all  lands,  let  us  be  rigorously  just  to  other  nations,  just  to  the 
several  States,  and  just  to  every  class  and  to  every  citizen  ;  in  short,  just  in 
all  our  administration,  and  just  towards  all  mankind.  So  shall  Prosperity 
crown  all  our  enterprises — nor  shall  any  disturbance  within  nor  danger 
from  abroad  come  nigh  unto  us,  nor  alarm  us  for  the  safety  of  Fireside,  or 
Fane,  or  Capitol. 


